Ingram v. State

• Decision Date: 12 May 1975
• Docket Number: No. 1,No. 50305,50305,1
• Citation: 216 S.E.2d 608,134 Ga.App. 935
• Parties: W. H. INGRAM v. The STATE
• Court: Georgia Court of Appeals

Page 608

216 S.E.2d 608

134 Ga.App. 935

W. H. INGRAM v. The STATE.

No. 50305.

Court of Appeals of Georgia, Division No. 1.

May 12, 1975.

Rehearing Denied June 4, 1975.

Vincent P. McCauley, T. Edward Tante, IV, Columbus, for appellant.

E. Mullins Whisnant, Dist. Atty., J. Gray Conger, Asst. Dist. Atty., Columbus, for appellee.

Syllabus Opinion by the Court

MARSHALL, Judge.

Three defendants (Bradley, Riggins and Ingram) were tried jointly for murder, armed robbery and aggravated assault. The jury returned a verdict against Bradley for armed robbery and aggravated assault (no appeal) and against Riggins and Ingram for robbery by intimidation. The trial judge imposed a sentence of ten years each for Riggins (50306), and Ingram (50305). This opinion deals solely with the appeal of Ingram. Held:

1. The state has filed a motion to dismiss Ingram's appeal for failure of Ingram to timely file the transcript of the proceedings in the trial below. Ingram was convicted of robbery by intimidation on July 11, 1974, and sentenced to ten years in the penitentiary on July 12th. Notice of appeal was filed on August 1, 1974. The transcript of evidence was not filed until December, 1974. In the trial court the state moved to dismiss the appeal in accordance with Rule 11(c) (Code Ann. § 24-3611(c)) of the Court of Appeals, on the ground that the transcript had not been filed within the thirty-day filing period, as required under the Appellate Practice Act of 1965, p. 26 (Code Ann. § 6-806). On September 18, Ingram applied for extension of time to file the transcript nunc pro tunc. The trial court rule, as follows: 'In accordance with the rule laid down in McAuliffe v. Rutledge, 231 Ga. 745, 204 S.E.2d 141, that 'An attorney who through negligence, ignorance or misinterpretation of the law fails to perform routine duties resulting in a dismissal of his client's appeal, thereby denying such client a right of review after conviction cannot be said to be rendering effective assistance' it is the finding of the Court that Defendant's attorney did not render defendant effective assistance of Counsel and the motion of the State of Georgia to dismiss Defendant's appeal is hereby denied and Defendant's application for an extension of time for filing the Transcript of Evidence is hereby granted . . .'

In spite of the fact that the rules of Appellate Practice, as set forth in Code Ann. §§ 6-804 and 6-806, have not been complied with in this case, we are nevertheless required to follow the holding in McAuliffe v. Rutledge, 231 Ga. 745, 204 S.E.2d 141, as did the trial judge, and ignore the rules of appellate practice where the appeal involves a criminal defendant who has been ineffectively represented by counsel at trial. See also Cunningham v. State, 232 Ga. 416, 207 S.E.2d 48. In doing so, we echo the sentiment expressed in Mingo v. State, 133 Ga.App. 385, 210 S.E.2d 835, and in Denson v. State, 134 Ga.App. 876, 216 S.E.2d 606 (Case #50403, April 16, 1975). It is apparent that Blackstone v. State, 131 Ga.App. 666, 206 S.E.2d 553, overlooked in McAuliffe and Mingo, is implicitly overruled by McAuliffe.

2. Ingram enumerates eight errors, the fifth of which involves the question of whether the facts were sufficient to allow a charge of conspiracy when Ingram was not indicted or charged with same.

The evidence at trial showed that Ingram accompanied four other males to the residence of two victims for the ostensible purpose of purchasing marijuana. Ingram drove the car. During the course of the transaction one of the males pulled out a large pistol, ordered the two victims to lie down on the floor and began beasting them with the pistol. Another of the males taped the victims' legs together and another hit one of the victims over the head with a large wine bottle. The males then took stereo equipment and other personal effects from the victims and left in Ingram's car. One of the victims later died as a result of injuries received in the beating. Ingram, in a statement to the police, admitted his presence during the beating and robbery and that he helped dispose of some of the stolen goods, but his defense was that he just happened to be there and that there was no evidence that he actively or voluntarily participated in the crimes.

This evidence is sufficient to support a charge of conspiracy. A conspiracy may be proved and charged though not alleged in the indictment. Bruster v. State, 228 Ga. 651(3), 187 S.E.2d 297 and Scott v. State, 229 Ga. 541, 192 S.E.2d 367.

' Conspiracy consists in a corrupt agreement between two or more persons to do an unlawful act, the existence of which agreement may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose.' Fincher v. State, 211 Ga. 89(4), 84 S.E.2d 76 (emphasis supplied); Kennemore v. State, 222 Ga. 362(2), 149 S.E.2d 791.

3. The first enumeration of error contends that the trial judge erred in denying Ingram's motion to sever on the ground that conspiracy was not a proper theory of the case and that Ingram anticipated the attempted introduction by the prosecutor of a statement of one of the co-defendants. 'Ruling on a motion for severance is a matter committed to the sound discretion of the trial court and in order to obtain a reversal on a severance argument an appellant must carry the difficult burden of showing that the trial court abused its discretion in denying the severance.' United States v. Norman Clark, 5 Cir., 480 F.2d 1249; see Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed.2d 101. Here Ingram has not shown an antagonistic defense. Since it is a matter of discretion, and the appellant has not shown prejudice, this enumeration is without merit.

4. Ingram complains in enumeration of error 2 that the trial court erred in admitting an incriminating statement which Ingram made to police on the grounds that: (1) at least part of the statement was made while Ingram was under suspicion and in custody and before he was warned of his Miranda rights; (2) he was not advised of his right to stop the questioning at any point during the interrogation. The evidence at both the Jackson v. Denno hearing and before the jury showed that two police detectives called on Ingram at his house to find out some information concerning one Harvey King, a suspect in the case. Ingram stated that he knew King and had gone to Huntsville, Alabama with him recently. The detectives then asked Ingram to accompany them to headquarters to give them more information concerning King. He went voluntarily and was not placed under arrest. At policce headquarters Ingram asked why they were looking for King. The policeman responded 'I told him, I have a warrant for Harvey King for murder and armed robbery. At this point he became extremely nervous. He started twisting his hands and began sweating. And I asked him, I said, do you know anything about this? and he said yes-' At this point the policeman interrupted Ingram and advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The detective's testimony was that they did not suspect Ingram until this time and that their sole purpose in talking to him was to discover the whereabouts of King. 'The mandates of the Miranda case apply to in-custody interrogation, not to pre-custodial questioning, as here.' Kemp v. State, 227 Ga. 251, 252, 179 S.E.2d 920, 922. See also Estes v. State, 232 Ga. 703(4a), 208 S.E.2d 806; Jones v. State, 127 Ga.App. 137(4), 193 S.E.2d 38; Boorstine v. State, 126 Ga.App. 90(1), 190 S.E.2d 83; Ingle v. State, 123 Ga.App. 56, 179 S.E.2d 305.

That the advice given did not include advice that Ingram could stop the questioning at any time during the interrogation and remain silent or request the presence of an attorney is not a requirement under the Miranda case. Williams v. State, 132 Ga.App. 152(4), 207 S.E.2d 651. The statement made by Ingram was by a preponderance of the evidence, otherwise voluntarily made, Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618; Smith v. State, 218 Ga. 216(5), 126 S.E.2d 789; Brown v. State, 203 Ga. 218(2), 46 S.E.2d 160.

5. In the third enumeration of error, Ingram complains that the trial court erred in failing to exclude prosecution exhibit number four (a stereo speaker) because of lack of identification, and that without this evidence there is insufficient proof of robbery by intimidation. Even if the identification of the speaker by...